How Judges Set Bail

Some bail decisions are based on the criminal charges alone, while other bail determinations are more complicated.

Who Sets Bail? When Is Bail Set?

Judges ordinarily set a bail amount at a suspect's first court appearance after an arrest, which may be either a bail hearing or an arraignment. Many judges adhere to standard practices based on the seriousness of the charges. For example, a judge might set bail at $500 for a nonviolent misdemeanor. However, judges can raise or lower the standard bail, or waive bail altogether and grant release on the defendant's "own recognizance," based on the circumstances of an individual case.

What Are Bail Schedules?

In many areas of the country, defendants can post bail with the police even before they are brought to court for a bail hearing or an arraignment.

Bail Schedules

Many jails have posted "bail schedules," which specify bail amounts for common crimes. An arrested defendant might obtain release immediately after booking by paying the amount of bail outlined in the jailhouse bail schedule. Bail schedules can vary considerably according to locality, type of crime, and residency.

As a general rule, a jailhouse bail schedule is inflexible. Police can only accept bail amounts that are in the schedule—suspects wanting to pay less must go before a judge.

Highest Charges Set the Bail Schedule Amount

Unfortunately, for many suspects who want to bail out of jail quickly, the police tend to arrest suspects for the most serious criminal charge that can possibly be supported by the facts at their disposal. For instance, the police may treat possession of a small amount of drugs (often a misdemeanor) as an arrest for possession with intent to sell (often a felony). Even if the felony charge will almost certainly be reduced to a misdemeanor, it's a felony for the purposes of the bail schedule—and bail will be set accordingly.

Duty Judges

As an alternative or in addition to jailhouse bail schedules, some areas have duty judges. A duty judge is available to fix bail over the phone, without the necessity for a formal court hearing. Like a jailhouse bail schedule, using a duty judge is an option for arrested persons who are anxious to bail out of jail before going to court.

How Are Bail Amounts Determined?

Judges consider many factors when setting bail, including the severity of the charges and the defendant's personal history and situation.

Severity of the Criminal Charges

As a general rule, bail for offenses classified as felonies can be 5 to 10 times the bail required for misdemeanors. The more serious and dangerous the criminal charges are, the higher the amount of bail is likely to be.

Defendant's Criminal History and Community Ties

Other factors that influence the bail amount include a defendant's past criminal record, a defendant's record of bail jumping (or failure to appear), whether a defendant is employed, and whether a defendant has close ties to the community. Even if two defendants face the same charges, a judge will often set bail for a first-time offender lower than a repeat offender with a history of no-shows for court appearances.

Defendant's Ability to Pay

Bail should not be used as a way to keep a suspect locked up. Most states' laws require judges to set bail at the lowest amount necessary to ensure the suspect shows up in court and doesn't present a risk of harm to others.

Because the ability to post bail benefits the wealthy over the poor, many states now require judges to consider a defendant's financial ability to pay. If a defendant remains in jail only because they are too poor to pay, judges must consider alternatives, such as lowering the bail or imposing non-monetary conditions of release (such as electronic monitoring or supervision).

Can Judges Deny Bail?

Judges may legally deny bail altogether in some circumstances. Some states allow judges to deny bail for serious charges, such as first-degree murder if the presumption of guilt is great. Or bail might be denied to a defendant who is likely to flee the jurisdiction before the case concludes. Other states make bail a constitutional right, meaning judges cannot deny bail in any type of case.

Bail might be denied for a short period of time in some cases. For example, if another jurisdiction has placed a warrant (hold) on a defendant, a judge might keep the defendant in custody at least long enough for the other jurisdiction to pursue its charges (generally not more than 48 to 72 hours though).

Bail Setting Example

Rosie Olla is arrested and charged with managing a large prostitution ring. Rosie is a naturalized American citizen born in Spain, and her family still lives in Barcelona. While searching Rosie after her arrest, the police found that she was carrying a passport and $5,000 in cash.

Under these circumstances, a judge will be reluctant to set bail for Rosie. Her family background and the fact that she was carrying a passport and a large amount of cash suggest that Rosie may flee to Spain if she is released on bail. Unless Rosie can explain to the judge why she was carrying the passport and cash, and can also demonstrate strong ties to the local community, a judge is likely to deny her request for bail. If the state has a constitutional right to bail, the judge might set a high bail amount and take away her passport.

Do You Need a Lawyer to Arrange Bail?

Defendants don't need a lawyer to arrange for bail. They can post cash bail, or phone a bail bond seller and arrange for a bond, on their own or ask a relative or friend to do it. However, a lawyer is in the best position to argue for a lower bail or bond amount or ask for release on recognizance ($0 bail). This generally means sitting in jail longer, so a defendant will want to weigh the pros and cons of getting out of jail right away versus getting a lower bail amount.